CONDOMINIUMS.

All owners own a share in the common elements

July 29, 2001|By Mark Pearlstein. Special to the Tribune.

Q. In a recent column, you stated that condominium owners have title to their units, but only the exclusive right to use, but not own, certain surrounding areas. My question is who owns these surrounding areas? If the unit owners don't own these areas, why are we paying monthly assessments for maintenance on areas we don't own? Is it then permissible to withhold assessments because the unit owners do not own the surrounding areas?

A. The surrounding areas you are referring to are limited common elements. Members of the association each have a percentage share of ownership in all common elements, and an exclusive right to use certain portions of those common elements adjacent to their units.

Owners do not have sole ownership of the common elements. The Condominium Act designates the board of directors as the party who administers the common elements, including limited common element balconies, patios and other similar areas.

Since you own a percentage share of the common elements, you have to pay the same percentage of assessments to maintain the property.

Withholding assessments is not an option.

Q. I was on a condominium board when I lived in the city, and now serve on the board of a town home association in the suburbs. I understand that an association board cannot hold a meeting without notifying the entire ownership, except on the three issues in the Condominium Act.

Our current board president feels that the board members can have a meeting whenever they want, and has held meetings to plan agendas for the next "official" board meeting. I say this is illegal. Please advise.

A. You are correct that an association board must notify the owners of a meeting; but a discussion to plan an agenda and other gatherings where a vote is not taken is not a meeting.

Recognizing that association boards may discuss matters without making decisions, Section 1(w) of the Condominium Act was amended approximately seven years ago to revise the definition of a board meeting. A board meeting is now a gathering of a quorum of directors to conduct board business -- namely, to make decisions by casting votes. This definition applies to boards of directors of a condominium, master associations or a common interest community like your town home association.

The board must send formal notice of all "meetings," but may hold discussions that do not result in decisions on matters such as contracts, employees or other association expenditures.

Architectural controls are imposed to maintain the appearance of the community. Construction and improvements to a home without the requisite approval required by the covenants will have expensive consequences for a homeowner.

- In Hardee v. Westminster Glenn Phase I Homeowner's Association Inc., decided March 8, a Texas Appellate Court upheld an order requiring an individual owner to remove a privacy fence that was built without prior approval of the association architectural control committee. The association's covenants required an owner to submit a development plan for any new construction, including items such as a fence.

The court noted that the requirement to submit a development plan was stated in three different places in the covenants. The purpose of the plan was to maintain a uniform plan of improvement for the benefit of present and future owners.

Under the Texas Property Code, the exercise of discretionary authority by a community association is presumed to be reasonable unless the actions of the governing body are arbitrary, capricious or discriminatory. This owner was notified at least 16 months before construction that the fence proposed by the owner was not approved. His decision to proceed with the fence cost him more than $18,000 in attorneys' fees.

- The Illinois Chapter of the Community Associations Institute will present a seminar on Wednesday, Aug. 8, on budgets and reserves. The speakers will be architect Alan Yore and accountant Steven Kasper. The program will be held at the Drury Lane in Oak Brook, 1000 Drury Lane, Oakbrook Terrace. For information, call the chapter office at 630-980-0251.